R. v. Sit Kong Kam

HCMA000502/1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 502 OF 1994

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 19 July 1994

Date of delivery of judgment: 19 July 1994

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J U D G M E N T

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1. On 20th April 1994 at San Po Kong Magistrates' Court, the Appellant was convicted, after pleading not guilty, of theft. He and his mother, who was 66 years old, had been observed by a store detective in a department store taking a pair of scissors and various groceries without paying for them. He was remanded on bail for a probation officer's report. That report was available when he returned to court on 4th May. He was on that occasion sentenced to one month's imprisonment and fined $1,000. He now appeals against his conviction and sentence, having been granted bail pending appeal.

2. I have carefully read the magistrate's notes of the proceedings and his Statement of Findings. I have also looked at the two documentary exhibits. The issue was whether the store detective's evidence of what he saw the Appellant and his mother do was true and accurate. Having seen and heard the store detective, the magistrate was sure that his evidence had been true and accurate. I cannot interfere with that finding, and I can detect no grounds on which to set aside the Appellant's conviction. The appeal against conviction must therefore be dismissed.

3. The Appellant was 36 years old at the time, unmarried and living with his mother. He told the probation officer who compiled the report on him that he worked in various garment factories in Macau and Shenzhen, and earned about $10,000 a month. This was not his first brush with the law. He had been fined for an offence of theft in 1975, fined for an offence of assault in 1985, and fined and sentenced to one month's imprisonment suspended for twelve months for an offence of theft in 1992. His mother today has begged me to be merciful, and she points to her family's straightened circumstances and the recent death of her husband.

4. In Attorney-General v. Chung Kun Wai [1989] 1 H.K.L.R. 91, the Court of Appeal held that even in shoplifting cases there does come a time when the offender's record become such that a prison sentence is inevitable. I cannot say that the magistrate was wrong to impose the sentence he did in this case. Apart from the Appellant's previous record, the offence was not, to use the magistrate's own words, "committed on the spur of the moment out of a brief moment of greed. It was committed in a planned and deliberate manner, with the two defendants taking turns in acting as lookout and thief. Both were equipped with bags particularly suitable to this enterprise, easily used to drop in stolen items and sufficiently capacious that it would not be particularly obvious to observers that there was anything inside."

5. For these reasons, the appeal against sentence must be dismissed.

Representation:

Mr. W.S. Cheung, S.C.C., for Crown

SIT Kwong-kam, Appellant in person